VIJAY KUMAR AGARWAL Vs. UNION OF INDIA AND ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 6393 of 2012, Judgment Date: Oct 06, 2015
When the order of suspension is revoked and the suspended employee is asked
to join the duty, he is required to do so. How the period of suspension is
to be treated is another aspect. At the most, such an employee would be
entitled to full salary during the suspension period if no order is passed
as to how the suspension period would be governed. That would not mean
that order revoking suspension itself becomes bad in law.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE (CIVIL) NO. 6393 OF 2012
VIJAY KUMAR AGARWAL .....APPELLANT(S)
VERSUS
UNION OF INDIA AND ANR. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Though, the issue raised in this Special Leave Petition is
very short and in a narrow campus, it has a chequered history. The
question is only as to whether the petitioner is entitled to full salary
from June 05, 1996. However, the background facts under which the issues
have cropped up for discussion need to be recapitulated.
Eschewing the unnecessary details, we confine the narration to only those
facts which are absolutely essential and relevant to decide the controversy
at hand.
The petitioner herein, after emerging as a successful candidate in the
Civil Services Examination, was selected in the Indian Administrative
Service ('IAS') and was allocated to Maharashtra cadre, where he joined on
September 01, 1982. There were certain jerks and upheavals in the service
career of the petitioner from the very beginning which need not be
mentioned. Suffice it to state that the petitioner was denied senior time
scale and he challenged the same by filing writ petition in the High Court
of Bombay claiming that he was entitled to the senior time scale with
effect from January 01, 1986. With the constitution of Central
Administrative Tribunal (hereinafter referred to as the 'Tribunal'), on
passing of the Administrative Tribunal Act, 1986, this writ petition was
transferred to the Tribunal bearing Transfer Application No. 283 of 1986
and the Tribunal ultimately dismissed the aforesaid transfer application of
the petitioner on January 19, 1987. The petitioner assailed the order of
the Tribunal by filing Special Leave Petition in this Court in which leave
was granted and the case was registered as Civil Appeal No. 3446 of 1987.
During the pendency of the Civil Appeal, the petitioner was suspended vide
orders dated May 26, 1988 and a charge sheet was served upon him for major
penalty proceedings on July 06, 1988. This order of suspension as well as
validity of the charge-sheet was challenged by the petitioner by filing
Writ Petition (C) No. 1037 of 1988 under Article 32 of the Constitution, in
this Court. In this writ petition, interim orders dated November 02, 1988
were passed staying the proceedings in the charge-sheet which was served
upon the petitioner on July 06, 1988. Significantly, the prayer of the
petitioner in the writ petition for staying the order of suspension was not
allowed and, therefore, the petitioner remained under suspension since May
26, 1988.
Civil Appeal No. 3464 of 1987, against the non-denial of the senior time-
scale to the petitioner, was also allowed by this Court vide order dated
August 30, 1988, i.e., two months before the stay of charge-sheet was
granted. The petitioner, thus, became entitled to be placed in the senior
time-scale.
In the meantime, since direction of this Court to grant him senior time-
scale was to be complied with by the Government, the Collector, Kolhapur
sent a bill to be signed by the petitioner so that subsistence allowance
could be paid. However, notwithstanding various communications written to
him in this behalf he did not sign the same nor submitted non-employment
certificate. On the other hand, the petitioner resorted to multiple
litigation before the Tribunal and also in this Court directly. It may not
be necessary to give the details of these proceedings except to mention
that virtually all these proceedings were decided against the petitioner,
with the exception of one case where the Tribunal granted him relief
directing the Authorities to issue 'No Objection Certificate' to enable him
to obtain a passport for going abroad.
We would, however, like to mention that in a Criminal Appeal No. 605 of
1991, this Court passed the orders dated October 31, 1991 requesting the
Attorney General to look into his representation as he wanted change of
allocation of Maharashtra cadre to any other State. This was done with a
view to put an end to various cases which were initiated by the petitioner
and were found to be unnecessary or without any merit. Be that as it may,
in deference to the wishes of this Court expressed in the aforesaid order,
the Central Government informed the Court on December 16, 1993 that State
of Punjab was willing to take the petitioner on deputation for one year.
In order to enable the petitioner to join there, the suspension of the
petitioner was also withdrawn vide orders dated May 13, 1996. However, in
the application submitted by the petitioner to the Central Government for
his being transferred on deputation to the State of Punjab he put certain
conditions which were not acceptable to the State of Maharashtra. Vide
another order dated June 07, 1996, he was directed to take charge as Deputy
Secretary, Social Welfare, Cultural Affairs and Sports Department,
Government of Maharashtra to finalize the procedural formalities required
to be completed for the State of Punjab to take him on deputation. The
petitioner, however, did not join the said posting because of which his
joining State of Punjab on deputation also could not materialize.
On the other hand, as the petitioner had not joined the services in spite
of revocation of suspension on May 13, 1996, another charge-sheet dated May
04, 1998 was issued to the petitioner on the ground that he remained
unauthorisedly absent from duty and had also left the headquarters without
permission of the Competent Authority. The petitioner, promptly, filed
contempt petition in Civil Appeal No. 3464 of 1987 alleging that service of
such a charge-sheet amounted to contempt of court. This contempt petition
was, however, dismissed by this Court.
In the meantime, third charge-sheet dated October 05, 1998 was also served
upon him.
Finally, the request of the petitioner to send him on deputation to the
State of Punjab was also turned down by the Government of India on February
27, 1997, going by the aforesaid subsequent events which have taken place.
The petitioner once again filed another contempt petition in Civil Appeal
No. 3464 of 1987 and raised many other grievances therein as well including
non-grant of subsistence allowance. The State of Maharashtra informed the
Court that his suspension had been revoked but he was not joining the
duties. It was also pointed out that subsistence allowance could not be
paid as he had not signed the bills sent to him. Orders were passed on
September 19, 2001 by the Court for payment of complete salary to the
petitioner from May 01, 1988 to May 13, 1996. The amount was calculated and
salary for this period, which was in the sum of ?6,82,290/-, was tendered
to the petitioner in the Court, however, he refused to accept the same on
the ground that this salary was calculated as per the senior time-scale but
in the meantime persons junior to him had been promoted and, therefore, he
should be given the salary of promotional post. The Court, taking note of
the obstinate stand of the petitioner, dismissed the contempt petition as
well as all pending applications of October 18, 2001. In the process, this
Court observed that the issue of payment of salary at higher scale could
not be decided in the contempt petition. Pertinently, the petitioner
received the amount of ?6,82,290/- later on.
There were yet various writ petitions, contempt petitions and criminal
appeals filed by the petitioner in this Court, all of which were dismissed
in default on October 07, 2002. The order dated October 07, 2002 passed in
Writ Petition (C) No. 1037 of 1988 records : “Despite the service of notice
of hearing to the petitioner for remaining present the petitioner has not
remained present. In spite of that petitioner who appears in person has
filed an application for transfer of the matter to another Bench. In our
view, enough indulgence is shown to the petitioner and he has misused the
same. The petition therefore does not require any further consideration.
The writ petitions, contempt petitions, criminal appeal and the I.A. are
dismissed for default. Interim order stands vacated.” Thereafter, on an
application filed, the writ petition was restored. Rather than arguing the
writ petition, the petitioner filed another writ petition No. 75 of 2003
claiming multifarious reliefs pertaining to his service which was dismissed
on June 16, 2003. Thereafter, vide order dated December 09, 2005, Writ
Petition (C) No. 1037 of 1988 was also dismissed with a direction that the
petitioner may avail the alternative remedy of approaching the Central
Administrative Tribunal.
After the aforesaid order, the petitioner filed O.A. No. 1714 of 2003
before the Central Administrative Tribunal, Principal Bench, New Delhi. He
challenged order dated May 13, 1996, revoking his suspension and prayed
that it be set aside on the ground that composite order of revocation of
suspension should have been passed which should have included pay and
allowances that are to be paid during the period of suspension ending with
reinstatement and also whether or not the period of suspension is to be
treated as period on duty. In this O.A., he also justified his non-joining
the duty in terms of orders dated June 07, 1996 on the ground that the post
of Deputy Secretary was below his entitlement as the persons immediately
junior to him had earned a promotion. The petitioner, thus, also challenged
his posting as Deputy Secretary, he also questioned the validity of two
charge-sheets dated May 04, 1998 and October 05, 1998 and sought quashing
thereof including quashing of the order dated September 18, 2002 whereby an
enquiry officer was appointed. He also challenged orders dated March 27,
2003 wherein he was intimated that salary could not be paid to him as he
was not reporting for duty.
This OA was decided by the Tribunal on November 18, 2003 quashing the
orders dated May 13, 1996. The said order was quashed on the ground that a
composite order contemplated by Rule 5B had to be passed with respect to
the manner in which suspension period was to be reckoned or the entitlement
of payment of salary. At the same time, liberty was granted to the State
of Maharashtra to pass a fresh order on issue of revocation of suspension.
However, salary for the period after June, 1996 was declined with the
observation that if the petitioner joins service as Deputy Secretary, the
salary shall be paid. No other relief was granted to the petitioner on the
ground that in one OA, the petitioner had joined multifarious causes. It
was observed that qua other reliefs, the petitioner was free to take resort
to necessary action. The petitioner filed review application in the said
OA on the ground that once the order of revocation of suspension was
quashed, the Tribunal could not have granted permission to the State
Government to pass a fresh order. This application for review was
dismissed. He filed one more application for review which was also
dismissed. Challenging the orders of the Tribunal, the petitioner filed
Writ Petition (Civil) No. 916 of 2007 in the High Court of Delhi.
The petitioner thereafter filed another OA but confined his relief insofar
as it related to charge-sheet dated May 04, 1998 and penalty imposed on him
vide orders dated April 02, 2007. This OA is still pending before the
Tribunal.
After the Tribunal had decided OA No. 1714 of 2003 and permitted the
Department to pass an order pertaining to the period the petitioner
remained under suspension, the Government passed the orders dated July 29,
2004 declining to pay full pay and allowances to the petitioner for the
period May 26, 1988 to May 12, 1996, viz., the period during which he
remained under suspension. This order was challenged by the petitioner by
filing OA No. 2507 of 2005. In this OA, he also filed six miscellaneous
applications seeking various other reliefs. The said OA No. 2507 of 2005
as well as miscellaneous applications were disposed of by the Tribunal
holding that order dated July 29, 2004 was repugnant to the directions
issued by the Supreme Court to pay full salary for the aforesaid period.
At the same time, the Tribunal also noted that in any case the petitioner
had already received full salary for this period, that is, some of
?6,82,290/-.
The petitioner had filed three more OAs, namely, OA No. 2947 of 2003, OA
No. 3092 of 2003 and OA No. 3141 of 2003 which were disposed of by the
Tribunal by common order dated May 18, 2004. In OA No. 2947 of 2003, the
petitioner sought quashing of inquiry report dated November 01, 2003
pertaining to the second charge-sheet in which he was charged with the
misconduct of unauthorisedly remaining absent from duty.
In O.A. No. 3092/2003, the petitioner had challenged third charge-sheet
dated October 05, 1998 wherein the charge was that he had not filed annual
returns. Vide O.A. No. 3141 of 2003, the petitioner prayed for quashing of
orders dated June 07, 1996 vide which he was directed to report for duty as
Deputy Secretary in the Social Welfare Department. Vide orders dated May
18, 2004, all these three OAs were dismissed by the Tribunal. Challenging
the said order, the petitioner filed writ petition no. 2768 of 2007 in the
High Court of Delhi.
Few more OAs were also filed by the petitioner in CAT which were dismissed
by the Tribunal. Against those orders, writ petitions were also preferred.
These writ petitions were also dismissed by the same common judgment.
However, for the purpose of present special leave petition, it is necessary
to refer to those writ petitions.
With this background, we revert back to writ petition Nos.916/2007 and
2768/2007. As far as writ petition No.916/2007 is concerned, let it be
recapitulated that it arises out of OA No.1714/2003 wherein the petitioner
had challenged the order dated May 13, 1996 by which his suspension was
revoked. This OA was allowed by the Tribunal on the ground that it was
necessary for the Government to pass composite order which was the
requirement of Rule 5B of the Rules and since the Government had not
indicated in the order as to how the suspension period would be reckoned
and the decision for payment of salary during the suspension period was
also not taken, the order was bad in law. The liberty, however, was
granted to the State Government to pass fresh order regarding salary of
suspension period. This part of the order granting liberty to the State
Government was sought to be reviewed by the petitioner by filing review
petition which was dismissed and this dismissal was challenged by the
petitioner in the said writ petition No.916/2007.
The High Court while dealing with this writ petition took the view that in
case order revoking the suspension did not deal with the suspension period
or payment of the salary for suspension period, order revoking suspension
cannot be treated as void or non est. The only effect thereof would be that
the competent authority is precluded from exercising its power under FR 54B
and the legal position was that if while revoking the suspension or within
a reasonable time thereof no order is passed pertaining to pay and
allowances for the period of suspension, the authority is denuded from
passing such an order. The necessary consequences thereof would be that
the Government servant, in such a situation, is entitled to full salary for
the period he remained under suspension. Therefore, High Court held that
the petitioner was entitled to full pay and allowances for the period he
remained under suspension and in the present case, the Supreme Court had
already passed the order for grant of full salary for the period May 01,
1988 to May 13, 1996 and this amount had also been received by the
petitioner though initially he had refused to accept the same when it was
tendered to him in the Court. Moreover, the State of Maharashtra had not
revoked the suspension on its own but to facilitate petitioner's inter-
cadre transfer from Maharashtra cadre to Punjab cadre and, therefore, the
order of revocation of suspension was not in exercise of power to revoke
the suspension on the ground that the petitioner was no longer required to
kept under suspension and these peculiar circumstances were not kept in
mind by the Tribunal.
According to us, the aforesaid approach of the High Court, under the given
circumstances, is without blemish. The High Court has relied upon certain
judgments of this Court including the decision in the case of Basant Ram
Jaiswal v. Area Manager (North) MTNL Bombay[1] which held that in such a
situation, the competent authority cannot exercise the power under FR 54B.
When the order of suspension is revoked and the suspended employee is asked
to join the duty, he is required to do so. How the period of suspension is
to be treated is another aspect. At the most, such an employee would be
entitled to full salary during the suspension period if no order is passed
as to how the suspension period would be governed. That would not mean
that order revoking suspension itself becomes bad in law. It is pertinent
to mention that even the Tribunal did not say that order revoking
suspension was bad in law (In fact that part of the order was favourable to
the petitioner). What it held was that in terms of Rule 5(b), the
Government should have also decided how the period of suspension is to be
treated and, therefore, directed the Government to pass necessary order to
that effect.
An employee who is suspended generally feels aggrieved by such suspension
order and would like his suspension to be revoked. Curiously, in the
present case, when such an order was passed in the case of the petitioner,
instead of joining the duties, he started questioning the validity of the
order of revocation on hyper-technical grounds claiming that he would not
join the duties unless his period of suspension is also dealt with. This
speaks volumes about the conduct of the petitioner depicting that he was
not interested in joining the duties. Had the petitioner joined the
duties, it would have even facilitated his change of cadre as well by
allowing him Punjab cadre. He did not allow it to happen and he himself is
responsible for this state of affair.
Otherwise also, in any case, we feel that once the entire salary for
suspension period is received by the petitioner, there was no question of
making any grievance in respect of order revoking suspension.
Insofar as writ petition No.2768/2007 is concerned, this pertain to
challenge to the second as well as third chargesheets and orders dated June
07, 1996 by which he was directed to report for duty as Deputy Secretary in
the Social Welfare Department. The High Court dismissed this writ petition
with the reason that the petitioner had made repeated attempts and re-
agitated this issue time and again. We do not find any fault in dismissing
this writ petition as well.
With this, we come to the real issue that is agitated by the petitioner
and, in fact, no grievance was made by the petitioner insofar as dismissal
of the aforesaid writ petitions are concerned. The petitioner is claiming
pay and allowances from June 05, 1996 onwards till date. This was also one
of the prayers in OA No.1714/2003 before the Tribunal. The Tribunal had,
however, rejected this prayer in the following manner:
“26. As regards claim of the applicant for grant of pay and allowances
from 5.6.1996 is concerned, as the applicant, without express permission of
the competent authority, has failed to bring on record any credible
material showing that he has joined the post of Deputy Secretary in Social
Welfare Department, having not worked on the post by the applicant, at
present he is not entitled for the relief of grant of salary for the
aforesaid period. However, the aforesaid period shall remain subject to
pending finalisation of the disciplinary proceedings and on culmination,
the law shall take its own course. However, we observe that in the event,
the applicant joins the post of Deputy Secretary in the Social Welfare
Department, respondents shall start paying him the salary as per rules.
We, at present, are not inclined to allow the prayer of the applicant for
grant of salary for the period from 1996 till date.”
Significantly, the petitioner did not challenge this part of the order. As
pointed out above, though he filed two review petitions seeking review of
that portion of the order by which Tribunal had given liberty to the State
Government to pass fresh order of suspension but did not even ask for
review of the order denying him salary for the period after June 05, 1996.
The order of the Tribunal was not even challenged before the High Court
and, thus, it became final. That apart, the petitioner never joined the
duties and, therefore, he cannot claim salary on the principle of 'no work
no pay' as well.
We may point out that the claim for salary for the period after June 05,
1996 till date is on the ground that the order revoking the suspension
itself was illegal and, therefore, he was not supposed to join the duty.
It is stated at the cost of repetition that the petitioner could have
claimed salary for the period of suspension but that was no ground not to
join the duties once the suspension order was revoked. The excuse for not
joining the duties has also been negatived. It may be recalled in this
behalf that he was asked to join the duties as Deputy Secretary and his
plea was that he was asked to join inferior post. His OA in this behalf
was also dismissed.
As a result, present special leave petition is dismissed in limine.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ROHINTON FALI NARIMAN)
NEW DELHI;
OCTOBER 06, 2015
-----------------------
[1]
1996 (3) Supp. LLJ 855
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